Discussion on the law that applies to or affects Australia's emergency services and emergency management, by Michael Eburn, PhD and Barrister.

Transport the parent but leave the child?

I was recently told the following story. I find it hard to believe it could be true (I hope it isn’t) but just in case it is, I’ll comment on it here. The gist of the story is

… a parent was at a park with a young child. The parent was injured in an accident. Paramedics attended and transported the parent to hospital but refused to carry the child, allegedly as they had no adequate child restraint. Instead the child was left with a stranger who agreed to care for the child and deliver it back to the family.

That the child was delivered safe and well reflects on the general good nature of most people, but the risk is obvious and shocking. Could such an action possibly be justified? In my answer it can’t.

The ambulance service may be there to treat the injured person, but no doubt transporting the injured person but leaving their child behind is not acting in the injured person’s best interests.

The doctrine of necessity would provide sufficient justification, if any was needed, for taking care of the child even though the child is not sick or injured.

… to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person (Lord Goff in In Re F [1990] 2 AC 1).

It is a doctrine of necessity, not emergency. The fact that an infant child is not injured does not mean that you can’t take care of them when it is reasonable to do so. Taking a lost child by the hand and leading them to their parents or the police is no more an assault that doing CPR when required. Necessity would have justified, if justification were necessary, taking the child into the ambulance.

As for the claim about a child restraint, there is generally an exemption from seat belts in an ambulance. For example, the Road Rules 2014 (NSW) say that a person is exempt from the need to wear a seat belt if they are a passenger in an emergency vehicle (Road Rules 2014 (NSW) r 267(5)). Even if there is no exemption what’s the worst that can happen? A traffic infringement notice? If there is an accident and the child is injured that is not good, but if you leave the child with a stranger and they are never heard of again, that would be worse. Again the doctrine of necessity as a defence to a minor traffic offence would, in all the circumstances, provide a defence.

Leaving the child in the care of a stranger would be negligent. The ambulance service is there to treat the patient but a patient is a complete person and includes not just their injury (they are not ‘the broken leg’) but all their concerns, including the child. As the parent has responsibility for the child, the ambulance service as a statutory authority not only has the knowledge of the child and the knowledge that if they take the parent the child will be vulnerable they also have the authority to take some action. People expect and trust the emergency services to take steps to mitigate risk and they have the means to communicate with police if that is required to ask them to take care of the child. An ambulance would be a safe and effective place to secure the child and either transport it with the parent or wait for further assistance. I don’t think it would be at all difficult to argue that the service owed a duty of care to both the parent and the child. If that is the case, they would need to take reasonable care to protect the child and that would not involve leaving it with a stranger. It would require transporting the child or making arrangements for police or family to come to the scene and collect it. Whether waiting was reasonable, or not, would depend on the parent’s injuries and the need to take him or her to hospital for definitive care. I can think of no situation where leaving an infant child with a stranger with directions to take him or her home would be a reasonable response.

A member of staff of the Ambulance Service of NSW or an honorary ambulance officer is not liable for any injury or damage caused by the member of staff or officer in the carrying out, in good faith, of any of the member’s or officer’s duties relating to:

(a) the provision of ambulance services, or

(b) the protection of persons from injury or death, whether or not those persons are or were sick or injured.

Take care of a child whose parent has been injured would be covered by sub-clause (b) above. But failing to take care of the child would not. A paramedic who refuses to take the child for fear or repercussions of having the child without an approved child restraint is not acting in good faith as he or she is not acting in the best interests of either the parent or the child. He or she is concerned with his or her or the agencies best interests.

Conclusion

Leaving the child with a stranger, if indeed it did happen, would be unprofessional and outrageous. It would not be required by law; on the other hand, taking care of the child and transporting the child with its parents would be lawful, regardless of the presence or absence of suitable child restraints.